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Colorado electors appeal to state Supreme Court, arguing that state has no jurisdiction to punish

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Posted at 4:18 PM, Dec 15, 2016
and last updated 2016-12-15 18:54:14-05

DENVER – The attorney for two Colorado electors seeking to block a state law requiring them to vote for Hillary Clinton has filed an emergency appeal with the Colorado Supreme Court to try again to have the case heard before they have to cast their electoral votes on Monday.

Polly Baca, a former state senator from Denver, and Robert Nemanich, an elector from Colorado Springs, are a part of the so-called “Hamilton electors” movement that is trying to keep President-elect out of the White House and send the election to the House of Representatives for the third time ever. They filed suit last week.

On Tuesday, Denver District Court Judge Elizabeth A. Starrs ruled that if Baca and Nemanich fail to take their oath to adhere to their electoral duties, or fail to follow state law and vote for Clinton, that they will be removed, replaced and possibly prosecuted.

The Colorado Democratic Party would nominate any new electors to fill their positions should they be replaced.

That hearing took place after Secretary of State Wayne Williams petitioned the court for guidance on how to proceed should the electors not follow the rules.

The hearing also came on the same day that Baca and Nemanich’s lawyer, Jesse Witt, filed an appeal of their federal lawsuit that claimed Colorado’s law requiring them to vote for the winner of the state popular vote was unconstitutional.

A federal judge in U.S. District Court of Colorado denied the federal suit a day earlier, calling their motions to block the law a “political stunt” and saying if he granted the motion, it would undermine the electoral process.

Baca and Nemanich are among nine electors chosen and authorized by the Democratic Party at the national convention in April and have already signed sworn affidavits they would vote for the Democratic candidates for president should they win in Colorado.

They are set to be sworn in and to cast their vote at noon next Monday, Dec. 19.

The appeal to the Colorado Supreme Court had to be filed within three days of Tuesday’s decision in Denver District Court.

In the appeal, the attorney for Baca and Nemanich argues that being an elector is a federal duty, and thus the Denver District Court never had jurisdiction over the statute in question (the district court judge ruled the court did have jurisdiction).

The attorney also argues that the district court’s interpretation of the Election Code amounted to an “advisory opinion” that was not in line with the actual code.

Witt says that the code lays out that casting a vote as an elector is a federal duty, pointing to a portion that says “electors shall proceed to perform the duties required of them by the constitution and laws of the United States.”

Witt also filed an emergency motion for expedited briefing and review to try and get the appeal heard before Monday at noon, writing in his motion that the dispute has “substantial implications for Colorado and the United States as a whole.”

Witt said he had been in contact with the clerk at the state Supreme Court and hopes to obtain a ruling before Monday.

Baca and Nemanich’s federal suit is not the only “Hamilton electors” suit struck down in court this week. On Wednesday, a federal judge in Washington state denied a similar suit from two electors there.

Also Thursday, The Associated Press published a story in which they interviewed more than 330 of the 538 electors and found that “this most untraditional of elections is on course to produce a traditional outcome” and that it was unlikely the “Hamilton electors” movement would be able to turn the 37 electors necessary in order to send the election to the House.

Taxpayers are footing the bill for defending the lawsuits, which named Colorado’s governor, secretary of state and attorney general as defendants.

Witt told Denver7 his office, Boulder-based The Witt Law Firm, is working on the case pro bono. The "Hamilton Electors" group has set up a GoFundMe page to help pay for court costs in various states.

He added to his response after this story originally published:

"My clients are the defendants in this lawsuit. It was Colorado Secretary of State Wayne Williams who chose to sue them. It was Secretary Williams who chose to use taxpayer dollars to have three lawyers from the Attorney General’s office represent him at trial. It was Secretary Williams who chose to use taxpayer dollars to pay a private process server to serve my clients at their homes over the weekend.

 

All along, my clients have been paying their own way, via pro bono efforts of lawyers (me, Jason Wesoky, and others), donations to the Hamilton Electors group, and out-of-pocket travel expenses. The only one burning through state dollars here is Secretary Williams."

The federal appeal to the 10th U.S. Circuit Court of Appeals is pending.

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